The Dos and Don’ts of Filing for Divorce: A Legal Guide

July 26, 2023by Adam Sacks

The Divorce Process

Filing for divorce can be an emotionally challenging process. Understanding the legal steps involved can help make this difficult time more manageable.

The legal process of divorce involves several key steps, including filing the divorce petition, serving the other party, and engaging in the discovery process to gather relevant information.

A divorce attorney can help you navigate complex issues such as child custody arrangements, property division, and financial matters.

Whether you are pursuing an amicable divorce or, unfortunately, facing contentious disputes, having a knowledgeable legal professional on your side will ensure that your rights are protected and that the process moves forward smoothly.

 

  

Reasons for Divorce

When couples decide to end their marriage, there can be a variety of reasons that prompt them to file for divorce. These reasons can be categorized into two main types: no-fault and at-fault grounds. Understanding these distinctions is essential for individuals navigating the divorce process.

No-fault divorces are based on the idea that the marriage is irretrievably broken, without placing blame on either party. In some states, no reason needs to be provided other than the irrevocable breakdown of the marriage.

This approach can simplify the divorce process, as it does not require proving allegations or fault. Instead, the focus is on resolving issues such as child custody, property division, and financial matters.

At-fault divorces are based on specific grounds that demonstrate the misconduct or wrongdoing of a spouse. Common reasons cited for at-fault divorces include:

Abandonment – If one spouse has left the marital home and has been absent for an extended period of time without consent from the other partner, abandonment can be cited as grounds for divorce.

Abuse – Physical, emotional, or sexual abuse of one partner by the other is a valid reason for divorce. In some cases, evidence of abuse must be presented in court.

Adultery – Cheating on a spouse is considered an act of marital misconduct, which can be used as grounds for divorce. In some states, proof of adultery may be required in court.

Substance Abuse – Drug or alcohol abuse can negatively impact the marriage and make it difficult to maintain a healthy relationship. Substance abuse is often cited as grounds for divorce.

While an at-fault divorce may be emotionally satisfying for the party who feels wronged, proving these allegations can be challenging and may prolong the legal proceedings.

Each approach has its potential benefits and drawbacks. No-fault divorces offer a quicker resolution and can foster a more amicable relationship between the parties.

In some states, fault-based grounds for divorce can influence the division of marital property. The spouse who is not at fault may be entitled to a larger share of marital assets or a more favorable settlement in terms of property division.

Fault-based grounds for divorce can affect child custody and support arrangements. For example, if a spouse has a history of abusive behavior or substance abuse, it may impact their ability to obtain custody or have unsupervised visitation rights.

Regardless of the reasons for divorce, it is advisable to consult with an experienced family law attorney to understand the laws and regulations in your jurisdiction.

They can guide you through the divorce process, helping you make informed decisions and protect your interests.

 

Important Considerations

When filing for divorce, there are several important considerations that individuals should keep in mind. First and foremost, it is essential to understand the different options available for resolving the divorce process.

Mediation and collaborative divorce are alternative dispute resolution methods that can help couples reach amicable agreements outside of the courtroom. These approaches can save time, money, and emotional stress, especially if the couple is able to work together to find common ground.

Individuals should also carefully consider the grounds for divorce that apply in their jurisdiction.

Evaluate whether asserting any of these grounds in the divorce petition is necessary or advantageous based on the specific circumstances of the individual case.

Individuals should not overlook the importance of reviewing and updating insurance policies during the divorce process. This includes changing beneficiaries on life insurance policies and designating new beneficiaries on health insurance policies.

Addressing these matters can help avoid potential complications and ensure that the appropriate parties are protected in the event of life-changing events.

A divorce attorney can help navigate the complexities of divorce, ensure compliance with relevant laws and regulations, and help you make informed decisions that will shape your future.

 

Types of Divorce

When considering filing for divorce, understanding the different types of divorce is crucial. The two main types are uncontested and contested divorces.

Uncontested divorces occur when both parties are able to reach an agreement on all issues, such as: child custody, property division, and financial matters.

This type of divorce is typically faster, less adversarial, and more cost-effective. On the other hand, contested divorces arise when the couple is unable to reach an agreement, and the court must intervene to make decisions on their behalf.

These divorces can be more time-consuming, emotionally draining, and costly. It’s essential to carefully evaluate the circumstances and dynamics of the relationship to determine the most appropriate type of divorce to pursue.

Individuals should be aware of the specific grounds for divorce that apply in their jurisdiction and consider their advantage in asserting them in the divorce petition.

By understanding the different types of divorce and the grounds that apply, individuals can make informed decisions throughout the divorce process and ensure a smoother transition into the next chapter of their lives.

 

Uncontested Divorce

To begin the process, both parties must be willing to cooperate and work together to reach a settlement agreement.

This agreement will address key issues such as property division, alimony, child custody, and child support. Once the agreement is finalized, the next step is to file the necessary paperwork with the court to formalize the divorce. [1]

 

Contested Divorce

In a contested divorce, the process can be more complex and contentious compared to an uncontested divorce. This type of divorce occurs when the spouses are unable to reach an agreement on key issues such as:

Alimony: Alimony, or spousal support, is financial support that one spouse may owe to the other. In a contested divorce, the amount and duration of alimony can be decided by the court. [2]

Child Custody: When parents are unable to agree on who will have primary care of their children, the court may need to intervene and make a decision based on the child’s best interests.

Financial Matters: In a contested divorce, couples must also address financial matters such as division of debts, taxes, and retirement accounts. It is essential to consider all factors when reaching agreements in these areas to ensure that both parties are protected financially in the long run.

Property Division: When spouses cannot agree on how to divide their marital property, the court may need to intervene. Depending on the state’s laws, courts might consider factors such as each spouse’s income, contributions to the marriage, or the length of the marriage. [3]

Due to the adversarial nature of a contested divorce, it is highly recommended to have the guidance and representation of experienced family law attorneys.

Attorneys will advocate for their client’s best interests and protect their rights throughout the process. A contested divorce typically takes a longer period of time to resolve compared to an uncontested divorce.

This is because the spouses must go through the discovery process, where they exchange relevant information and financial documents. This process can be time-consuming and often requires court appearances.

The increased complexity and disagreements involved in a contested divorce can result in higher legal fees and costs. These expenses can be incurred due to the additional time spent on negotiations, document preparation, court filings, and legal meetings or hearings.

While a contested divorce can be more challenging and costly, it may be necessary for spouses who are unable to come to an agreement on key issues. By engaging competent attorneys, spouses can navigate the legal hurdles and work towards a fair resolution.

 

Collaborative Divorce

Collaborative Divorce is an alternative dispute resolution method that offers a cooperative and non-adversarial approach for couples seeking to end their marriage.

In a collaborative divorce, both parties work together, along with their respective attorneys, to reach a mutually agreeable settlement without going to court.

One of the main benefits of collaborative divorce is that it allows couples to maintain control over the outcome of their divorce. Rather than leaving decisions to a judge, they can actively participate in the negotiation process and make choices that best suit their unique situation.

This can result in more customized and satisfactory solutions, particularly when it comes to sensitive matters such as child custody arrangements or division of property.

The collaborative divorce process involves a series of meetings and discussions where the couple and their attorneys explore various options and work towards resolving their issues. Unlike traditional divorce proceedings, which can be adversarial and hostile,

By choosing this option, couples also avoid the need for a court trial, which can be time-consuming, expensive, and emotionally draining. Instead, they can maintain privacy and confidentiality within the collaborative process.

The emphasis is on finding common ground and finding mutually agreeable solutions that benefit everyone involved. By working together with attorneys, they can achieve a mutually agreeable settlement that better meets their unique needs and interests.

 

 

Preparing for Filing for Divorce

Dos:

Do become familiar with your state’s divorce laws: Understand the specific divorce laws and requirements in your state to ensure compliance and protect your rights.

Do comply with court orders and deadlines: Adhere to all court orders and meet required deadlines related to paperwork, hearings, or other legal proceedings.

Do conduct an inventory of assets and debts: Create a comprehensive list of all marital assets and debts to ensure a fair distribution during the divorce.

Do consider alternative dispute resolution methods: Explore mediation or collaborative divorce processes to reach mutually agreeable solutions without unnecessary litigation.

Do consider the potential tax implications of your decisions: Understand the tax consequences of property division, alimony, and other financial arrangements.

Do consult with an experienced divorce attorney: Seek legal advice to understand your rights, responsibilities, and potential outcomes.

Do document important conversations and agreements: Keep records of any discussions or agreements reached during the divorce process for future reference.

Do establish a support network: Seek support from trusted individuals, such as family members, friends, or therapists, who can provide guidance and emotional support throughout the divorce.

Do explore your options for financial stability: Assess your financial situation and plan for short-term and long-term financial needs, considering factors like property division and spousal support.

Do gather all necessary financial documents: Collect copies of bank statements, tax returns, investment accounts, property deeds, and other relevant financial records.

Do maintain a civil relationship with your spouse: Strive to keep conflicts and tensions to a minimum, especially if children are involved, to create a healthier post-divorce dynamic.

Do maintain open and honest communication with your spouse: Foster effective communication and cooperation to facilitate a smoother divorce process.

Do prepare for changes in living arrangements: Consider the implications of potential changes in housing, whether it’s finding a new residence or deciding whether to stay in the marital home.

Do prepare for negotiations: Be knowledgeable about your financial situation, goals, and priorities to effectively negotiate a settlement that aligns with your interests.

Do prioritize self-care: Take care of your physical and emotional well-being by engaging in activities that promote self-care, such as exercise, therapy, and hobbies.

Do prioritize the well-being of your children: Make your children’s best interests a top priority and work towards a fair child custody and support arrangement. [4]

Do seek therapy or counseling if needed: Divorce can be emotionally challenging, so consider seeking professional help to navigate the emotional impact of the process.

Do stay informed and educated: Continuously educate yourself about divorce laws, processes, and available resources to make well-informed decisions throughout the divorce proceedings.

Do update important legal documents: Review and update documents, such as wills, trusts, and beneficiaries, to reflect your changed circumstances.

 

Don’ts:

Don’t badmouth your spouse in front of your children or on public platforms: refrain from speaking negatively about your spouse, especially in front of your children, as it may negatively impact their well-being.

Don’t disregard court orders or legal obligations: comply with all court orders and maintain your legal responsibilities promptly.

Don’t disregard the value of mediation or alternative dispute resolution methods: explore the possibility of resolving conflicts through peaceful means in order to save time, money, and reduce stress.

Don’t drain or hide marital assets: avoid dissipating assets or transferring them to evade division during the divorce process.

Don’t engage in illegal activities or fraudulent behavior: unethical or illegal actions can harm your case and may have severe legal consequences.

Don’t ignore the impact of your actions on your children: consider how your behavior and decisions affect your children’s emotional well-being and strive to protect them from unnecessary harm during the divorce.

Don’t ignore the importance of legal representation: consulting and hiring an experienced divorce attorney is crucial to protect your rights and interests.

Don’t involve friends and family in the conflict: maintain boundaries and avoid dragging mutual friends and family members into the divorce dispute.

Don’t make assumptions about the outcome of the divorce: each case is unique, so refrain from presuming or relying solely on common divorce myths or anecdotes.

Don’t make impulsive decisions: carefully consider the long-term implications of decisions related to property division, child custody, and support.

Don’t make major financial decisions impulsively: hold off on making significant financial decisions until after the divorce is finalized and you have a clear understanding of your financial situation.

Don’t neglect your financial responsibilities: continue to meet your financial obligations, including child support or spousal support payments, to avoid legal repercussions.

Don’t neglect your own legal rights and responsibilities: stay informed about your rights and obligations throughout the divorce process to ensure a fair and just outcome.

Don’t neglect your post-divorce planning: focus on your future and develop a plan for financial stability, co-parenting arrangements, and personal growth after the divorce.

Don’t refuse to negotiate or compromise: be open to reasonable negotiations and strive to find common ground to reach a fair settlement.

Don’t use children as leverage or involve them in adult conflicts: shield your children from the divorce process and avoid using them to manipulate or hurt your spouse.

Don’t use social media recklessly: exercise caution when posting on social media as it can be used against you during the divorce proceedings.

Don’t use the legal process to seek revenge or prolong the conflict: focus on finding resolutions and moving forward rather than attempting to punish your spouse through legal battles.

By following these dos and don’ts, individuals can better prepare themselves for filing for divorce and navigate the process with the necessary knowledge and confidence.

 

Choosing a Family Law Attorney

When filing for divorce, one of the most crucial steps is choosing a family law attorney who can guide you through the legal process and protect your rights and interests.

Consider the attorney’s experience and their previous cases handled. Look for an attorney who specializes in family law or divorce cases specifically.

This specialization ensures that they have in-depth knowledge of the laws and regulations related to divorce proceedings. An experienced attorney will have a better understanding of the strategies and approaches that work best in these cases, increasing the chances of a favorable outcome.

Consider the attorney’s expertise in relevant areas. Divorce cases can involve various legal issues, such as child custody, property division, and spousal support.

Ensure that the attorney you choose has expertise in handling these specific matters. This expertise will enable them to provide effective advice and representation tailored to your unique circumstances.

Consultations with multiple attorneys can help you assess their suitability and determine who you feel most comfortable working with throughout the divorce process. Remember to ask about their approach, communication style, and how they will advocate for your needs.

By considering the attorney’s experience, previous cases handled, and expertise, you can choose a family law attorney who is well-equipped to handle your divorce and ensure the best possible outcome for your case.

 

Gather Relevant Documents and Information

When filing for divorce, it is essential to gather all the relevant documents and information to ensure a smooth and efficient process.

Collecting the necessary paperwork upfront will help you navigate through the legal proceedings with ease. Here are some key documents and information you should gather:

Copies: Make copies of all the collected documents. It is vital to have duplicates of everything to ensure that you have a record of all necessary paperwork.

Financial documents: Gather individual financial documents, including pay stubs, employment contracts, business records, and income tax returns. These documents will provide a comprehensive overview of your financial situation.

Jointly-owned records: Collect financial records that are jointly owned, such as bank statements, tax returns, investment portfolios, and mortgage statements. These documents are used to determine the value of shared assets and debts.

Personal documents: Start by gathering personal identification documents such as birth certificates, passports, driver’s licenses, and social security cards. Include any diplomas, professional licenses, or degrees that may have financial implications.

Safe location: Store the copies of the documents in a safe and secure location outside the family home. This ensures that you have access to the information even if there are disagreements or disputes during the divorce process.

By thoroughly gathering and organizing these personal, jointly-owned, and financial records, you can better navigate the divorce proceedings and provide your divorce attorney with the necessary documentation to support your case.

 

References

[1] Divorce, Child Support & Child Custody. (n.d.). www.nolo.com. https://www.nolo.com/legal-encyclopedia/child-support

[2] Attorney, A. O. (2022, November 27). Alimony and Legal Issues When Getting a Divorce While Living With Someone Else. www.nolo.com. https://www.nolo.com/legal-encyclopedia/free-books/living-together-book/chapter8-2.html

[3] Judge, J. P. R. (2022, October 11). Separate and Marital Property: Who Gets What in Divorce? www.nolo.com. https://www.nolo.com/legal-encyclopedia/separate-community-property-during-marriage-29921.html

[4] Child Support. (n.d.). https://www.michigan.gov/mdhhs/adult-child-serv/child-sup

by Adam Sacks

Adam Sacks is lead Family Law Attorney at Law Offices of Sacks & Sacks, P.A. in Jacksonville, Florida. He has a BA in Psychology from 1994, and received his Juris Doctor Degree in 1999 from the Western Michigan University Cooley Law School.

Sacks and Sacks Law
1646 Emerson St. Suite B Jacksonville, FL 32207

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